Cite as U.S. v. Kenney, 91 F.3d 884 (7th Cir. 1996)
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JOHN W. KENNEY, Defendant-Appellant.
No. 95-3937
In the United States Court of Appeals For the Seventh Circuit
Appeal from the United States District Court for the Western
District of Wisconsin. No. 92 CR 74--Barbara B. Crabb, Judge.
ARGUED JUNE 12, 1996--DECIDED JULY 30, 1996
Before FLAUM, RIPPLE, and ROVNER, Circuit Judges.
FLAUM, Circuit Judge.
The sole question in this direct appeal is whether John
Kenney's conviction for possession of a machine gun is invalid
because the criminal statute, 18 U.S.C. sec. 922(o), is
unconstitutional. He argues that the Supreme Court's reasoning in
United States v. Lopez, 115 S. Ct. 1624 (1995), demonstrates that
sec. 922(o) exceeds the scope of Congress's legislative power under
the Commerce Clause, U.S. Const. Art. I, sec. 8, cl. 3. The
magistrate judge agreed and recommended granting Kenney's motion to
dismiss the indictment, but the district court took the contrary
view and denied the motion. We affirm the district court.
I.
The relevant facts are undisputed. In 1991, after receiving a
tip from Kenney's wife and her consent to search their Wisconsin
residence, an FBI agent recovered an Intratec TEC-9 semiautomatic
pistol that had been converted to fire as a machine gun. The weapon
was testfired and operated only in the fully automatic mode. Kenney
admitted possessing the weapon and stated that he needed it because
of "past dealings in Central America." He later fled the
jurisdiction. In 1995 he was arrested in Florida and returned to
Wisconsin, where he pleaded guilty to one count of unlawful
possession of a machine gun. [footnote 1]
II.
Section 922(o) was enacted in 1986 as sec. 102(9) of the Firearm
Owners' Protection Act, Pub. L. No. 99-308, 100 Stat. 449, 452-53,
amending the Gun Control Act of 1968, 18 U.S.C. sec. 921 et seq.
The subsection provides:
(o)(1) Except as provided in paragraph (2), it shall be
unlawful for any person to transfer or possess a machinegun.
(2) This subsection does not apply with respect to--
(A) a transfer to or by, or possession by or under the
authority of, the United States or any department or agency
thereof or a State, or a department, agency, or political
subdivision thereof; or
(B) any lawful transfer or lawful possession of a machinegun
that was lawfully possessed before the date this subsection
takes effect.
18 U.S.C. sec. 922(o).
Section 922(o), which took effect on May 19, 1986, regulates more
than assembled machine guns: the term "machine gun" is defined as
either a weapon that fires repeatedly on a single trigger pull or
as a part or parts designed to convert a manually firing weapon
into a machine gun. 26 U.S.C. sec. 5845(b). The Bureau of Alcohol,
Tobacco, and Firearms has interpreted sec. 922(o) to ban private
possession or transfer of new machine guns not lawfully possessed
before the statute's effective date, and therefore the Bureau will
not approve applications to register new weapons because to do so
would place the applicant in violation of the law. 27 C.F.R. sec.
179.105; see also Farmer v. Higgins, 907 F.2d 1041 (11th Cir. 1990)
(agreeing with this interpretation of sec. 922(o)), cert. denied,
498 U.S. 1047 (1991). Section 922(o), then, effectively freezes the
number of legal machine guns in private hands at its 1986 level.
As the Tenth Circuit noted in United States v. Wilks, 58 F.3d
1518 (10th Cir. 1995), Congress enacted sec. 922(o) with little
discussion: "The scant legislative history merely contains a
discussion of an earlier bill proposed in the House of
Representatives which 'prohibited the transfer and possession of
machine guns, used by racketeers and drug traffickers for
intimidation, murder and protection of drugs and the proceeds of
crime.' " Id. at 1519 (quoting H.R. Rep. No. 495, 99th Cong., 2d
Sess. 4 (1986), reprinted in 1986 U.S.C.C.A.N. 1327, 1330). The
only explanation supplied for the last-minute amendment that was
later enacted was "the statement of its sponsor, Representative
Hughes, that 'I do not know why anyone would object to the banning
of machine guns.' " Id. (quoting 132 Cong. Rec. H1750 (1986)
(statement of Rep. Hughes)); see also Farmer, 907 F.2d 1044-45;
David T. Hardy, The Firearms Owners' Protection Act: A Historical
and Legal Perspective, 17 Cumb. L. Rev. 585, 670-71 (1987).
The standard of Commerce Clause review is narrow and
deferential. "Judicial review in this area is influenced above all
by the fact that the Commerce Clause is a grant of plenary
authority to Congress. This power is 'complete in itself, may be
exercised to its utmost extent, and acknowledges no limitations
other than are prescribed in the constitution.' " Hodel v. Virginia
Surface Mining & Reclamation Ass'n, Inc., 452 U.S. 264, 276 (1981)
(citations omitted) (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.)
1, 196 (1824)). "The motive and purpose of a regulation of
interstate commerce are matters for the legislative judgment upon
the exercise of which the Constitution places no restriction and
over which the courts are given no control." United States v.
Darby, 312 U.S. 100, 115 (1941). Our task is merely to determine
whether Congress could have had a rational basis to support the
exercise of its commerce power; and, further, that the regulatory
means chosen were "reasonably adapted to the end permitted by the
Constitution." Hodel, 452 U.S. at 276; see also United States v.
Wilson, 73 F.3d 675, 679-83 & n.6 (7th Cir. 1995) (citing Hodel),
petition for cert. filed, 64 U.S.L.W. 3669 (U.S. Mar. 20, 1996)
(No. 95-1523). But deference is not acquiescence: consistent with
the principle of judicial review set forth in Marbury v. Madison,
5 U.S. (1 Cranch) 137 (1803), it is for the courts to judge whether
Congress has exceeded its constitutionally enumerated powers.
Wilson, 73 F.3d at 680.
In United States v. Lopez, 115 S. Ct. 1624 (1995), the Supreme
Court divided 5-4 to strike down 18 U.S.C. sec. 922(q), which
forbade "any individual knowingly to possess a firearm at a place
that the individual knows, or has reasonable cause to believe, is
a school zone." As this court recently explained:
In Lopez, the Court determined that in enacting 18 U.S.C.
sec. 922(q), the Gun-Free School Zones Act, Congress had
exceeded the "outer limits" of its power under the Commerce
Clause. Under the clause, Congress can regulate, the court
recounted, three broad categories of activity: the use of the
channels of interstate commerce; the instrumentalities of
interstate commerce and persons and things in interstate
commerce; and activities having a substantial relation to
interstate commerce. The latter was the only possible
justification for sec. 922(q).
The Gun-Free School Zone[s] Act failed to survive the
constitutional challenge because it was not an essential part
of a larger regulation of economic activity and it did not
contain a "jurisdictional element which would ensure, through
case-by-case inquiry, that the firearm possession in question
affects interstate commerce." Lopez, __ U.S. at __, 115 S. Ct.
at 1631. The statute also did not contain congressional
findings which would, the Court said, enable them "to evaluate
the legislative judgment that the activity in question
substantially affected interstate commerce. . . ." __ U.S. at
__, 115 S. Ct. at 1632.
United States v. Bell, 70 F.3d 495, 498 (7th Cir. 1995). The three
categories of commerce regulation outlined by the Court were not
new to Lopez, but were originally established in Perez v. United
States, 402 U.S. 146, 150 (1971). Lopez addressed only the third
category.
The Lopez majority acknowledged that "a determination whether an
intrastate activity is commercial or noncommercial may in some
cases result in legal uncertainty," and that "the question of
congressional power under the Commerce Clause 'is necessarily one
of degree.' " Lopez, 115 S. Ct. at 1633 (citation omitted). The
majority heeded Justice Cardozo's concern that an overly expansive
view of causation "would obliterate the distinction of what is
national and what is local in the activities of commerce," id.
(quoting A.L.A. Schechter Poultry Corp. v. United States, 295 U.S.
495, 554 (1935) (Cardozo, J., concurring)), and concluded that to
uphold sec. 922(q) would require the Court "to pile inference upon
inference in a manner that would bid fair to convert congressional
authority under the Commerce Clause to a general police power of
the sort retained by the States." Id. at 1634. But Lopez must also
be noted for what it did not do. The majority indicated that it
intended to establish an outer limit to congressional authority,
not to retrench well-established Commerce Clause precedent:
"Admittedly, some of our prior cases have taken long steps down
that road, giving great deference to congressional action. The
broad language in these opinions has suggested the possibility of
additional expansion, but we decline here to proceed any further."
Id.; see also id. at 1637 (Kennedy, J., concurring). The essential
defect of sec. 922(q), in short, was that the narrow scope of its
regulation, limited to prohibiting simple possession of a firearm
within a school zone, was a noncommercial local activity that
neither was interstate commerce nor, whether taken as a single act
or as the aggregate effect of all such acts, had a substantial
effect on interstate commerce.
In Bell, the appellant argued that the Lopez analysis rendered
unconstitutional 18 U.S.C. sec. 922(g)(1), a provision that
prohibits the possession of firearms by convicted felons. We
readily distinguished sec. 922(g)(1) because it includes a
jurisdictional element requiring the government to prove that the
felon "ship[ped] or transport[ed] in interstate or foreign
commerce, or possess[ed] in or affecting commerce, any firearm,"
thus establishing a case-by-case effect on interstate commerce even
in prosecutions of intrastate possession. Bell, 70 F.3d at 498.
Section 922(o), like sec. 922(q), lacks an interstate commerce
nexus element and thus can not be upheld under Bell's analysis.
Section 922(o) generally proscribes transfer and possession of
machine guns without any reference to interstate commerce. Section
922(o) also, like sec. 922(q), lacks legislative findings or
congressional committee reports regarding its nexus with interstate
commerce.
The government argues that sec. 922(o) is constitutional as part
of either the second or third Lopez/Perez categories, as a
regulation of things in interstate commerce or as a regulation of
activities substantially affecting interstate commerce. For
support, the government points out that every circuit court to
consider the question of sec. 922(o)'s constitutionality in light
of Lopez has upheld it: United States v. Wilks, 58 F.3d 1518 (10th
Cir. 1995); United States v. Kirk, 70 F.3d 791 (5th Cir. 1995),
rehearing en banc granted, 78 F.3d 160 (5th Cir. 1996); [footnote
2] and United States v. Rambo, 74 F.3d 948 (9th Cir. 1996). Kenney
counters by citing the contrary pre-Lopez view of United States v.
Bownds, 860 F. Supp. 336 (S.D. Miss. 1994).
In Bownds, the district court held that sec. 922(o) exceeded
Congress's commerce power and violated the Tenth Amendment. The
court faulted Congress for failing either to include a
jurisdictional element in the offense or to make findings "to
support its authority to ban the mere possession of machine guns."
860 F. Supp. at 340. The magistrate judge in this case found the
Bownds reasoning persuasive. We have, however, rejected the
argument that Lopez requires federal criminal statutes to contain
a jurisdictional element, Wilson, 73 F.3d at 685, and Lopez
explicitly reaffirmed the rule that "Congress normally is not
required to make formal findings as to the substantial burdens that
an activity has on interstate commerce." Lopez, 115 S. Ct. at 1631.
Even in Perez, where the Court discussed legislative history at
length in the course of upholding a statute that criminalized
loansharking, the Court was careful to note that such history is
merely helpful, not essential, in determining a statute's
constitutionality. Perez, 402 U.S. at 156 ("We have mentioned in
detail the economic, financial, and social setting of the problem
as revealed to Congress. We do so not to infer that Congress need
make particularized findings in order to legislate."); see also
Katzenbach v. McClung, 379 U.S. 294, 299 (1964) ("As we noted in
Heart of Atlanta Motel both Houses of Congress conducted prolonged
hearings on the Act. And, as we said there, while no formal
findings were made, which of course are not necessary, it is well
that we make mention of the testimony at these hearings the better
to understand the problem before Congress and determine whether the
Act is a reasonable and appropriate means toward its solution.").
Congress does not confer power on itself by making legislative
findings; conversely, it need not make findings to exercise its
full enumerated powers.
Lopez did establish that, where the legislative history is
silent, a substantial interstate commerce nexus must be "visible to
the naked eye" without resorting to "pil[ing] inference upon
inference" until nothing is left of state autonomy. Lopez, 115 S.
Ct at 1632, 1634. The Court was critical of and rejected the
illimitable breadth of the loss pooling rationale used to uphold
sec. 922(o) in United States v. Evans, 928 F.2d 858, 862 (9th Cir.
1991), where the Ninth Circuit found a concededly "tenuous"
interstate commerce nexus with the machine gun statute by reasoning
that firearms are involved in violent crime, the costs of violent
crime are substantial, and such costs are spread throughout the
population through the mechanism of insurance. Lopez, 115 S. Ct. at
1632 (citing Evans). The Lopez Court also rejected the government's
arguments that guns in schools cause violent crime that reduces the
willingness of people to travel interstate, and that guns in
schools handicap the education of the citizenry, in turn
undermining productivity and interstate commerce. Id. Thus if sec.
922(o) is constitutional, it must bear more than a generic
relationship several steps removed from interstate commerce, and it
must be a relationship that is apparent, not creatively inferred.
The circuit courts have provided several post-Lopez rationales
for sec. 922(o)'s constitutionality. In United States v. Wilks, 58
F.3d 1518 (10th Cir. 1995), the Tenth Circuit held sec. 922(o)
constitutional under the second category of commerce regulation,
that of " 'things in commerce'-- i.e., machineguns," reasoning that
"[t]he interstate flow of machineguns 'not only has a substantial
effect on interstate commerce; it is interstate commerce.' " Id. at
1521 (quoting United States v. Hunter, 843 F. Supp. 235, 249 (E.D.
Mich. 1994)). The court found that the legislative history of
federal firearms regulation as a whole supported its view that sec.
922(o) regulates "an item bound up with interstate attributes and
thus differs in substantial respect from legislation concerning
possession of a firearm within a purely local school zone." Id.
In United States v. Kirk, 70 F.3d 791 (5th Cir. 1995), rehearing
en banc granted, 78 F.3d 160 (5th Cir. 1996), a two-judge majority
of a Fifth Circuit panel concluded that sec. 922(o) falls into
either the first or second category. Id. at 795-96. To rebut the
appellant's claim that the statute regulates not commerce but "mere
possession," the court placed particular importance on sec.
922(o)'s grandfather clause, sec. 922(o)(2)(B), reasoning that in
light of the provision "there could be no unlawful possession under
section 922(o) without an unlawful transfer." Id. Therefore:
In this context, the limited ban on possession of machineguns
must be seen as a necessary and proper measure meant to allow
law enforcement to detect illegal transfers where the banned
commodity has come to rest: in the receiver's possession. In
effect, the ban on such possession is an attempt to control
the interstate market for machineguns by creating criminal
liability for those who would constitute the demand-side of
the market, i.e., those who would facilitate illegal transfer
out of the desire to acquire mere possession.
Id. The Kirk majority acknowledged that "some of the activity made
unlawful is purely intrastate," but found that, as with the federal
regulation of controlled substances, there was "a rational basis to
conclude that federal regulation of intrastate incidents of
transfer and possession is essential to effective control of the
interstate incidents of such traffic." Id. at 797.
Finally, in United States v. Rambo, 74 F.3d 948 (9th Cir. 1996),
the Ninth Circuit also upheld the constitutionality of sec. 922(o),
finding that it fits into the first category of regulation, that of
Congress's power to regulate the use or misuse of the channels of
commerce. The court was particularly persuaded by the Kirk
majority's "market theory" analysis that the structure of sec.
922(o) meant that every unlawful possession would necessarily be
preceded by an unlawful transfer. Id. at 951-52.
These three decisions agree that Congress had the power to enact
sec. 922(o), but their analyses vary as to how the statute comports
with Lopez. None of the circuits found that Lopez applied directly,
because none believed that sec. 922(o), unlike the ill-fated sec.
922(q), was properly viewed in the third category of commerce
regulation; and yet the courts differed as to which of the two
remaining categories they believed sec. 922(o) belonged.
Although we too hold sec. 922(o) constitutional, we find that
the statute is best analyzed in the third category. As an initial
matter, sec. 922(o) does not appear to be properly categorized as
a regulation of the channels of interstate commerce in the narrow
sense of the first category set forth in Lopez and Perez. The
examples used in these decisions indicate that this category is
limited to direct regulation of the channels of commerce, for each
of the statutes and cases cited, like sec. 922(g)(1), contains a
jurisdictional nexus element. See, e.g., 18 U.S.C. secs. 2312-2315
(interstate shipment of stolen goods); 18 U.S.C. sec. 1201
(interstate transport of kidnapping victims); United States v.
Darby, 312 U.S. 100 (1941) (regulation of working conditions in the
production of goods "for interstate commerce"). The first category
thus does little more than justify sec. 922(o) insofar as it
regulates interstate transfers and possessions. As the Kirk dissent
noted, the Kirk majority's analysis that every illegal possession
would necessarily be preceded by an illegal transfer is not
entirely true: an automatic weapon may be created by modifying a
semiautomatic weapon with raw materials, see United States v.
Jones, 976 F.2d 176, 178 (4th Cir. 1992) (describing home
conversion of shotguns), cert. denied, 508 U.S. 914 (1993); it may
also perhaps result from the effects of ordinary wear and tear on
a semiautomatic mechanism, see United States v. Anderson, 885 F.2d
1248, 1251 (5th Cir. 1989) (en banc); and either an automatic
weapon or a conversion kit could be manufactured, transferred, and
possessed intrastate. Finally, although it may be true that
Congress must regulate intrastate transfers and even mere
possessions of machine guns in aid of its prerogative of preventing
the misuse of the channels of interstate commerce, the regulation
still regulates much more than the channels of commerce. This
rationale is therefore an aspect of Congress's broader power to
regulate things "affecting" interstate commerce; we must look
further, in light of Lopez, to confirm the existence of a rational
and substantial basis underlying its power to do so.
For similar reasons, sec. 922(o) appears to be an ill fit in the
second Lopez/Perez category, that of things in or instrumentalities
of interstate commerce, because the regulation is much broader than
the category. Again, judging from the examples provided by the
Court, the second category provides only a partial justification
for sec. 922(o). In the Shreveport Rate Cases, 234 U.S. 342 (1914)
(rate regulation of railroad engaged in interstate commerce), or
Southern Ry. Co. v. United States, 222 U.S. 20 (1911) (regulation
of railway safety on interstate lines), cited in Lopez, 115 S. Ct.
at 1629, and in 18 U.S.C. sec. 32 (destruction of aircraft used in
interstate commerce), or 18 U.S.C. sec. 659 (theft from vehicles of
interstate shipment), cited in Perez, 402 U.S. at 150, the nexus
with interstate commerce is explicit and obvious in each case. The
Wilks court's observation that "[t]he interstate flow of
machineguns 'not only has a substantial effect on interstate
commerce; it is interstate commerce,' " 58 F.3d at 1521, is correct
as far as it goes, but it does not address the different question
of the propriety of sec. 922(o)'s regulation of intrastate
possession and transfer.
It is true that, unlike sec. 922(q), which was a limited
regulation of firearm possession within discrete and local areas of
the states, sec. 922(o) represents a congressional effort to
regulate the whole of an economic activity, the trade in machine
guns. Thus it demonstrates a federal purpose of regulating things
in interstate commerce, and Congress may regulate to protect or ban
things in interstate commerce "even though the threat may come only
from intrastate activities." Lopez, 115 S. Ct. at 1629. This is
not, however, a case of intrastate activity "threatening"
interstate commerce, in the way that a railroad maintaining
disproportionately low intrastate shipping rates places at a
competitive disadvantage and thus directly discriminates against
the free flow of traffic over its interstate lines, see the
Shreveport Rate Cases, 234 U.S. 342 (1914). Permitting unregulated
intrastate possessions and transfers of machine guns instead
indirectly undermines, via a market theory, the effectiveness of
the federal attempt to regulate interstate commerce in machine
guns. In other words, the intrastate activity "affects" the
interstate commerce, in an attenuated way that raises the Lopez
concern of whether such effect is "substantial."
And so we arrive at the third category, which, as the district
court concluded, provides ample authority for sec. 922(o). It is
evident that the regulation of machine guns is well within the
scope of congressional authority over activities affecting
commerce, and that sec. 922(o) is readily distinguishable from sec.
922(q). First, unlike sec. 922(q), sec. 922(o) is recognizable as
"an essential part of a larger regulation of economic activity, in
which the regulatory scheme could be undercut unless the intrastate
activity were regulated." Lopez, 115 S. Ct. at 1631. Kenney's
possession of a machine gun is much like the possession of wheat in
Wickard v. Filburn, 317 U.S. 111 (1942), cited with approval in
Lopez, 115 S. Ct. at 1630, where the Supreme Court upheld the
assessment of a penalty by the Secretary of Agriculture against a
farmer, Roscoe Filburn, who harvested twelve acres more wheat than
he was permitted to under the Agriculture Adjustment Act of 1938.
Although Filburn used the wheat on his farm and did not sell it,
the Wickard Court reasoned that "even if [Filburn's] activity be
local and though it may not be regarded as commerce, it may still,
whatever its nature, be reached by Congress if it exerts a
substantial economic effect on interstate commerce." Wickard, 317
U.S. at 125; see also Perez (regulation of local loansharking
appropriate where loansharking as a whole supports interstate
organized crime). Similarly, there is a rational basis to regulate
the local conduct of machine gun possession, including possession
resulting from home manufacture, to effectuate sec. 922(o)'s
purpose of freezing the number of legally possessed machine guns at
1986 levels, an effect that is closely entwined with regulating
interstate commerce.
Second, again unlike sec. 922(q), sec. 922(o) is not a statute
that "plows thoroughly new ground and represents a sharp break with
the long-standing pattern of federal firearms legislation," and
thus the lengthy legislative history of federal firearms regulation
does "speak to the subject matter of" sec. 922(o). Lopez, 115 S.
Ct. at 1632 (quoting lower court opinion in United States v. Lopez,
2 F.3d 1342, 1366 (5th Cir. 1993)). Congress has closely regulated
machine guns pursuant to its taxation power since the National
Firearms Act of 1934, which subjected machine guns, unlike ordinary
firearms, to federal registration and a transfer tax. Hardy, 17
Cumb. L. Rev. at 593. The Act was the first major federal attempt
at firearms regulation, and it expressly targeted machine guns, a
modern weapon whose unusual destructive power was of great appeal
to interstate organized crime. Id. In considering the bills that
became the Gun Control Act of 1968, Congress found that federal
control over firearms licensing for dealers, even for intrastate
activity, was necessary to address the serious problems associated
with interstate trafficking in firearms generally. S. Rep. No.
1097, 90th Cong., 2d Sess., reprinted in 1968 U.S.C.C.A.N. 2112,
2114, 2168. In light of these findings and enactments, the 1986
addition of sec. 922(o) was not novel but incremental, merely
preventing further growth in the number of machine guns in private
hands as an exercise of the historic federal interest in the
regulation of machine guns. [footnote 3] As such, and quite unlike
sec. 922(q), deference to Congress's accumulated institutional
expertise is appropriate, see Fullilove v. Klutznick, 448 U.S. 448,
503 (1980) (Powell, J., concurring).
In sum, both the nature of the statute and the history of
federal firearms legislation support the conclusion that sec.
922(o) is a constitutional exercise of Congress's Commerce Clause
power. As the Supreme Court noted in New York v. United States, 505
U.S. 144 (1992): "As interstate commerce has become ubiquitous,
activities once considered purely local have come to have effects
on the national economy, and have accordingly come within the scope
of Congress' commerce power." Id. at 158 (citing Katzenbach v.
McClung, 379 U.S. 294 (1964); Wickard v. Filburn, 317 U.S. 111
(1942)). The possession of a machine gun, because of its relation
to the closely regulated interstate market in machine guns, can not
be considered purely local or noncommercial. Moreover, the modest
regulatory means chosen by Congress were "reasonably adapted to the
end permitted by the Constitution." Hodel, 452 U.S. at 276.
III.
Finally, Kenney briefly argues that sec. 922(o) violates the
Tenth Amendment by usurping the states' traditional police powers.
But "Lopez . . . did not call into question the well-established
principle that Congress may regulate conduct even though that
conduct already violates state law." Wilson, 73 F.3d at 684.
Moreover, the Supreme Court has explained that the Tenth Amendment
"is essentially a tautology": the Amendment reiterates the
federalist notion that the federal government is limited to its
enumerated substantive powers and may not invade the exclusive
domain of state authority. New York v. United States, 505 U.S. at
156-57. The manner in which Congress acts is similarly restrained:
"Congress may not simply 'commandee[r] the legislative processes of
the States by directly compelling them to enact and enforce a
federal regulatory program.' " Id. at 161 (quoting Hodel). Because
sec. 922(o) was a proper exercise of Congress's enumerated
authority under the Commerce Clause, and because it does not
compel, let alone commandeer, the states to do anything, the
statute does not violate the Tenth Amendment.
AFFIRMED.
FOOTNOTES
1. Kenney entered his guilty plea without preserving his
constitutional challenge for appeal. However, the government has
expressly declined to raise a waiver argument, citing United States
v. Bell, 70 F.3d 495, 496-97 (7th Cir. 1995) (challenge to
constitutionality of statute of conviction is, in certain
circumstances, jurisdictional claim not waived by guilty plea).
2. The grant of rehearing en banc impliedly vacated the Kirk panel
decision. 5th Cir. R. 41.3.
3. To the extent, if any, that Congress in enacting sec. 922(o)
"pre-empt[ed] the historic powers of the States," the intended
scope of the statute is clear and unambiguous and thus satisfies
the "plain statement" requirement. Gregory v. Ashcroft, 501 U.S.
452, 460-61 (1991). The present case is thus quite unlike United
States v. Bass, 404 U.S. 336, 349-50 (1971), where the Supreme
Court applied a narrowing construction to an ambiguous gun control
statute, former 18 U.S.C. App. I sec. 1202(a), to require the
government to prove an interstate commerce nexus in prosecutions
for possession of a firearm by a convicted felon. As the Bass Court
explained: "In light of our disposition of the case, we do not
reach the question whether, upon appropriate findings, Congress can
constitutionally punish the 'mere possession' of firearms; thus, we
need not consider the relevance, in that connection, of our recent
decision in Perez v. United States." Id. at 339 n.4 (citation
omitted).